DOJ memo stokes fear among disability advocates of a return to institutionalization

The exterior of the Robert F. Kennedy Department of Justice building is pictured on May 4, 2021, in Washington, D.C. Patrick Semansky/AP hide caption toggle caption Patrick Semansky/AP The Justice Department released a memo this week that quietly calls into question decades of civil rights protections for Americans with disabilities and stirred fear and anger among advocates and families. The memo, an opinion from the Office of Legal Counsel, argues that states do not have to provide in-home or community-based care to people with disabilities who need support. These services allow many disabled Americans to continue to live, learn and work at home or in their own communities, among family and friends. "It is now the position of the United States government that people with disabilities don't have a right to be part of their communities," says Alison Barkoff, a health law and policy professor at George Washington University who led disability law and policy efforts during both the Obama and Biden administrations. "I can't overstate how significant this change in position is." Without the federal government requiring that states provide these services – to help disabled people integrate into their communities – advocates and legal experts warn that cash-strapped states could cut them and return to what was once common practice: de facto segregation of Americans with disabilities in nursing homes and large institutions. Pushback from the disability community was swift. "As America prepares to celebrate 250 years of independence, [this memo] threatens to drag our nation back to a dark and shameful era of ignorance and cruelty," said the American Association of People with Disabilities. "This interpretation will open the doors for states to revert to warehousing people with disabilities out of sight and out of mind in institutions." "This opinion is a direct threat to decades of progress toward community living for people with disabilities," said Shira Wakschlag of The Arc of the United States, a nonprofit disability advocacy group. "People with disabilities shouldn't be forced into institutions because a state refuses to provide services in the community." The Justice Department did not respond to an NPR request that it explain its position as well as why it is changing course after decades of legal and bipartisan support for community services. What the law says This new memo calls into question what legal experts say has been settled law for decades. Both Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act have long been interpreted to require that states provide services to Americans with disabilities in the most integrated setting appropriate. In short: Institutionalization should be a last resort. In 1999, a case testing these protections made it to the U.S. Supreme Court. In Olmstead v. L.C., two women with mental disabilities sued Georgia, arguing that the state had failed its obligation to provide services that would allow them to return to their communities and that it had continued to institutionalize the women instead, thus violating their civil rights. The court agreed that states have a legal responsibility to provide support that integrates disabled Americans into their communities, and for nearly three decades, courts across the country have embraced that interpretation. By 2023, 8.4 million Americans were receiving home- and community-based services through Medicaid. The new memo, written by Lanora Pettit, principal deputy assistant attorney general in the Office of Legal Counsel, argues that, while federal law prohibits discrimination on the basis of disability, it does not impose an "integration mandate" on states to provide these community services. What's more, the memo argues, the Supreme Court's Olmstead decision "held only that a state cannot institutionalize such patients without justification." But, the memo adds: "What counts as adequate justifica